Harris, Heather Leigh

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 2018
• Docket: WR-88,001-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,001-01

EX PARTE HEATHER LEIGH HARRIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W13266-1 IN THE 355TH DISTRICT COURT FROM HOOD COUNTY

Per curiam. KEASLER , J., dissents.

OPINION

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated

assault on a public servant and sentenced to fifteen years’ imprisonment.

Applicant contends that her counsel rendered ineffective assistance because he failed to

timely file a notice of appeal. We remanded this application to the trial court for findings of fact and

conclusions of law.

The trial court has determined that trial counsel advised Applicant of the deadlines for 2

perfecting appeal and that she was “non-committal as to her desire to pursue an appeal” at the end

of the discussion. The court found that no timely appeal was filed because Applicant never instructed

counsel to do so.

Counsel’s affidavit reveals that he informed Applicant of the deadline for filing a notice of

appeal and placed the burden on her to timely perfect appeal. Counsel erred. Ex parte Axel, 757

S.W.2d 369, 375 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App.

2003). Applicant’s belated inquiry demonstrates that she wished to appeal.

We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the

judgment of conviction in Cause No. CR13266 from the 355th District Court of Hood County.

Applicant is ordered returned to that time at which she may give a written notice of appeal so that

she may then, with the aid of counsel, obtain a meaningful appeal. It appears that Applicant is

represented by appointed counsel. Within ten days of the issuance of this opinion, the trial court shall

determine whether Applicant is indigent. If Applicant is indigent, is not represented by appointed

counsel, and wishes to be represented by counsel, the trial court shall immediately appoint an

attorney to represent Applicant on direct appeal. All time limits shall be calculated as if the sentence

had been imposed on the date on which the mandate of this Court issues. We hold that, should

Applicant desire to prosecute an appeal, she must take affirmative steps to file a written notice of

appeal in the trial court within 30 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: September 12, 2018 Do not publish